The NLRB Finishes 2012 with a Bang and Shows No Sign of Slowing Down in 2013

The National Labor Relations Board (the "NLRB") released a number of important decisions in late December 2012. The most significant of these decisions, which seemingly signal continued activism by the NLRB, address employee discipline and dues collection.

Under a process called "dues check-off," employers deduct union dues from employees' wages during the payroll process and remit them directly to the union. For over 50 years, the NLRB recognized the right of an employer to refuse to collect dues on behalf of a union where the collective bargaining agreement had expired. Instead, the union was required to spend its own resources collecting dues directly from the employees. In WKYC-TV, Gannett Co., 359 NLRB No. 30, however, the NLRB reversed long standing precedent and determined that an employer's duty to collect union dues from its employees continues even after the expiration of a collective bargaining agreement. Under the NLRB's new standard, the employer must continue to collect the union dues until either an impasse is declared or a new collective bargaining agreement is reached. The NLRB has thus eliminated an important financial incentive to ensure that successor labor agreements are negotiated before they expire.

In Alan Ritchey, Inc., 359 NLRB No. 40, the NLRB determined that unionized employers must give the union notice and an opportunity to bargain before imposing discretionary discipline. However, the NLRB's decision was specifically limited to the following situations:

Bargaining is only required in discretionary disciplinary actions involving demotions, suspensions and terminations, and not oral or written reprimands/warnings.

The duty to bargain only applies when the applicable collective bargaining agreement does not establish a grievance-arbitration process.

Obviously, requiring an employer to provide notice and an opportunity to bargain prior to implementing a disciplinary decision creates a significant practical burden upon an employer. To this end, the NLRB specifically provided that an employer must provide the union with, "notice and an opportunity to bargain over the discretionary aspects of its decision before proceeding to implement the decision. [However,] at this stage, the employer need not bargain to agreement or impasse, if it does so afterward."

The NLRB specifically recognized in Alan Ritchey that either in "exigent circumstances requiring immediate action" (i.e., where an employer has a reasonable, good faith belief that an employee's continued presence on the job presents a serious, imminent danger to the employer's business or personnel), or where an employer has properly implemented a disciplinary decision without first reaching agreement or impasse with the union, the employer must continue to bargain with the union after imposing discipline. In short, the NLRB has attempted to recognize certain situations where an employer may proceed with discretionary discipline; however, the NLRB has made clear that the duty to bargain will not terminate with the imposition of discipline. It remains to be seen how the NLRB's new standard will be applied in the workplace, but it will be sure to generate significant litigation concerning the duty to bargain.

While not addressed by the Alan Ritchey decision, it is arguable that the existence of a management rights clause recognizing the employer's right to implement and enforce reasonable work rules may evidence recognition by the union of the employer's right to implement discretionary discipline. However, as most collective bargaining agreements contain a grievance-arbitration process, this ruling will principally apply where the employer and the union are attempting to bargain an initial collective bargaining agreement. Nevertheless, the decision clearly marks a significant expansion of the duty to bargain.

2012 has been a year filled with important game-changing decisions by the NLRB as the agency seeks to redefine its role in the workplace of union and non-union employees. Historically, the five-member NLRB has included three members from the majority party and two members from the minority party. At present, however, the NLRB has only three members, all from the majority (i.e., the Democratic) party. Because the composition of the NLRB does not appear to be changing anytime soon, the NLRB will proactively seek to expand the rights of employees and organized labor. Accordingly, employers, both unionized and non-unionized, should pay very close attention in 2013.

If you have any questions about the material presented in this Alert, please contact James W. Seegers ( jseegers@bakerlaw.com or 407.649.4023), M.J. (Mike) Asensio ( masensio@bakerlaw.com or 614.462.2622) or any member of the BakerHostetler Labor Relations Team.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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